State v. Malloch

269 Mo. 235 | Mo. | 1916

ROY, C.

The defendant was convicted of keeping a bawdyhouse and displaying thereon the sign of an honest occupation contrary to Revised Statutes 1909, section 4758. He has appealed. '

The indictment charges that the defendant kept a bawdy-house at the northwest corner of College and Market Streets in the city of Springfield, and that he displayed thereon the sign “Palace Hotel.” It does not expressly charge that the defendant knew that the house was kept for such illegal purposes. That hotel was held by the defendant and his sister under a lease, they owning the furniture. The sister was away. Defendant with his family lived in the hotel and he managed it. The main hotel at the northwest corner of the street crossing contains twenty-four rooms. Across the street from it is what is called the “annex” in' the second story, it being connected with the main hotel by an overhead viaduct. There is ample evidence to the effect that for months before the indictment was returned the house was the resort of many persons for illicit sexual purposes, while at the same time it was extensively patronized as a hotel by people who were apparently unaware of the dual nature of the place.

There was evidence tending to show that certain employees of the house managed the illegitimate part of the business without the knowledge or participation of the defendant, but there was evidence also to the contrary.

The State proved by an officer that two people were arrested and taken out of the annex for lewd conduct. To that evidence defendant objected on the ground that the annex was not covered by the indictment. The objection was overruled and there was an exception.

The seventh instruction for the State is as follows:

“The court instructs the jury that the words ‘common bawdyhouse or common assignation house,’ as used in the indictment and instructions, mean a. house where lewd men and women meet and resort for the purpose of having illicit sexual intercourse; and in determining whether or not the house or building described in the indictment was so used, and whether or not the defendant had knowledge of such use, the jury may take into consideration the general bad reputation of the inmates of such house for virtue and chastity, if any such reputation has been shown to your satisfaction by the evidence.”

The defendant asked an instruction marked “A” as follows:

“You are instructed that the defendant Fred Malloch had the right to furnish lodging and home for the witnesses, Mable Dennison and Margaret Dale and other women even though you may believe and find from the evidence that said women were prostitutes at the time and were plying their avocation as such. The only duty that devolved upon said defendant was to not knowingly permit the said women to ply their avocation about his premises and in his hotel building.”

It was refused. Another instruction asked by defendant was covered by the instruction given.

I. Appellant says that the indictment is insufficient for the reason that it does not charge that the defendant knew the character of the house at the time of the alleged offense.

, x Indictni6iiti Bishop’s New Crim. Law (8 Ed.), section 1083, says: “A bawdyhouse is any place, whether of ¶ i • i /' i * ii > habitation or temporary sojourn, kept open to the public either generally or under restrictions, for licentious commerce between the sexes.” The law dictionaries, Bouvier, Wharton and Black, say that a bawdyhouse is kept for the purpose of illicit sexual intercourse. The information here charges that the defendant was the keeper of a common bawdyhouse. That is, in effect, a charge that he kept a house for the resort of persons who came for illicit sexual intercourse. The charge presumes and includes such knowledge on the part of the defendant. To keep a house for such purposes certainly means that he had knowledge of the purpose for which the house was used. The indictment in State v. McLaughlin, 160 Mo. 33, was like the one here in that respect. It was not criticised in that respect.

Evidence of Another Place. II. In State v. McLaughlin, supra, it was held that the indictment must designate the house on which the s*&n an kones^ occupation or business is displayed. The indictment here complies with that rule. It describes the house as “located at the northwest corner of the intersection of College and Market Streets.” Over the objection of the defendant the State was permitted to show that the officers arrested two persons in the “annex” charged with lewd conduct. The annex was across the street from the building described in the indictment, and was not described in the indictment as being used in connection with the main hotel. We do not here decide that the indictment could not have been so drawn as to cover both the main hotel and the annex as being used in connection with each • other as one establishment. That was not done. The evidence admitted was broad enough to cover both buildings, while the charge covers but one. Such evidence was improperly admitted.

III. Instruction 7 given for the State is improper. It calls special attention to the evidence as to the bad reputation of the inmates of the house and tells the jury that they may take such evidence into consideration.

In State v. Rutherford, 152 Mo. 121, l. c. 133, an instruction was held bad which singled out certain evidence and gave it a marked prominence.

IV. Instruction A asked by the defendant should have been given. The Attorney-G-eneral in his brief frankly says of this instruction: “Perhaps .it may have to be admitted that abstractly considered there is nothing wrong with the declaration, but its refusal worked no harm. ’ ’

In State v. McLaughlin, supra, it was said:

“The second instruction for the State was erroneous in that it permitted the jury to find the defendant’s house was a bawdy-house because one or more women boarded with her and received men in her house for sexual intercourse and paid her a certain part of the money received, without requiring the State to show that defendant knew the said facts or was privy to the said conduct. Moreover, it was in direct conflict with instruction 3 for defendant, which announces the true rule of law in the premises.”

The instruction 3 there mentioned was not materially different from the one under discussion.

The judgment is reversed and the cause remanded.

Williams, G., concurs. PER CURIAM:

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur; Revelle, J., in result only.